The Courts and the Takings Clause Kelo v. City of New London, 545 U.S. 469 (2005). TM

JUDGES If you were responsible for selecting all of the judges in Florida, what would you look for? Knowledge Knowledge Skills Skills Disposition/Qualities Disposition/Qualities TM

JUDGES How are judges different from other elected officials such as legislators? TM

JUDGES Should judges be influenced by political pressures when deciding a case? Should judges be influenced by political pressures when deciding a case? Would you want a judge to make a decision based on the law or how the public might react to the decision? Would you want a judge to make a decision based on the law or how the public might react to the decision? Should judges do what is legally right or should they do what is popular? Should judges do what is legally right or should they do what is popular? TM

JUDGES JUDGES MUST FOLLOW: FEDERAL CONSTITUTION FEDERAL CONSTITUTION STATE CONSTITUTION STATUTESRULES HIGHER COURT DECISIONS (PRECEDENT) TM

JUDGES So, a judge cannot decide a case based on how he/she feels about an issue. TM

JUDGES If a judge does not follow the existing law, his/her decision is subject to review by an appellate court. All courts are subject to review by a higher court except for the highest court in the country: the Supreme Court of the United States. TM

Today, you will be a justice on the U.S. Supreme Court and decide a real case involving the Fifth Amendment. TM

FIFTH AMENDMENT But first – You need to know about the Fifth Amendment to the U.S. Constitution and eminent domain. TM

Takings Clause of the Fifth Amendment The Text “[P]rivate property [shall not] be taken for public use, without just compensation.” TM But what do each of these phrases mean?

“Taken” Three factors to determine whether a “taking” has occurred: Economic impact on property Economic impact on property Interference with investment backed expectations Interference with investment backed expectations Character of the governmental action Character of the governmental action Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). TM

Lucas v. South Carolina Coastal Council, 505 U.S (1992) In 1986, petitioner David H. Lucas paid $975,000 for two residential lots on the Isle of Palms in South Carolina on which he intended to build single-family homes In 1986, petitioner David H. Lucas paid $975,000 for two residential lots on the Isle of Palms in South Carolina on which he intended to build single-family homes In 1988, the South Carolina legislature passed the Beachfront Management Act, which had the direct effect of barring Lucas from erecting any permanent habitable structures on his two parcels In 1988, the South Carolina legislature passed the Beachfront Management Act, which had the direct effect of barring Lucas from erecting any permanent habitable structures on his two parcels TM

Lucas v. South Carolina Coastal Council, 505 U.S (1992) The United States Supreme Court held that “[w]here the State seeks to sustain regulation that deprives land of all economically beneficial use,” it can avoid compensation only if the lost economic right was not part of the owner’s title to begin with The United States Supreme Court held that “[w]here the State seeks to sustain regulation that deprives land of all economically beneficial use,” it can avoid compensation only if the lost economic right was not part of the owner’s title to begin with The High Court held that the property was “taken,” and that Lucas was entitled to just compensation The High Court held that the property was “taken,” and that Lucas was entitled to just compensation TM

Compare with… TM

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002) California and Nevada created the Tahoe Regional Planning Agency (TRPA) to help develop the Lake Tahoe basin, which falls within both states California and Nevada created the Tahoe Regional Planning Agency (TRPA) to help develop the Lake Tahoe basin, which falls within both states Between , the TRPA issued two moratoriums that severely restricted residential development within the basin Between , the TRPA issued two moratoriums that severely restricted residential development within the basin The plaintiffs, a group of individuals that owned property in the area, sued, alleging the moratoria constituted a “taking” The plaintiffs, a group of individuals that owned property in the area, sued, alleging the moratoria constituted a “taking” TM

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002) The United States Supreme Court held that the restrictions did not constitute a “taking” The United States Supreme Court held that the restrictions did not constitute a “taking” The Court explicitly distinguished the facts from those in Lucas, reasoning that the property at issue cannot be considered to have lost all economic value because as soon as the restrictions are lifted, the landowners will recover all economic value The Court explicitly distinguished the facts from those in Lucas, reasoning that the property at issue cannot be considered to have lost all economic value because as soon as the restrictions are lifted, the landowners will recover all economic value The High Court reasoned that mere fluctuations in value during the process of governmental decision making, absent extraordinary delay, are incidents of ownership. They cannot be considered a ‘taking’ in the constitutional sense The High Court reasoned that mere fluctuations in value during the process of governmental decision making, absent extraordinary delay, are incidents of ownership. They cannot be considered a ‘taking’ in the constitutional sense TM

“Public Use” “[T]he public use requirement of the Takings Clause is coterminous with the regulatory power, and the Court will not strike down a condemnation on the basis that it lacks a public use so long as the taking ‘is rationally related to a conceivable public purpose.’ ” National R.R. Passenger Corp. v. Boston and Maine Corp., 503 U.S. 407, 421 (1992). “[T]he public use requirement of the Takings Clause is coterminous with the regulatory power, and the Court will not strike down a condemnation on the basis that it lacks a public use so long as the taking ‘is rationally related to a conceivable public purpose.’ ” National R.R. Passenger Corp. v. Boston and Maine Corp., 503 U.S. 407, 421 (1992). TM

“Just Compensation” “[Just] compensation means the full and perfect equivalent in money of the property taken. The owner is to be put in as good position pecuniarily as he would have occupied if his property had not been taken.” U.S. v. Miller, 317 U.S. 369, 373 (1943). “[Just] compensation means the full and perfect equivalent in money of the property taken. The owner is to be put in as good position pecuniarily as he would have occupied if his property had not been taken.” U.S. v. Miller, 317 U.S. 369, 373 (1943). “The Court has repeatedly held that just compensation normally is to be measured by ‘the market value of the property at the time of the taking contemporaneously paid in money.’ ” U.S. v. 50 Acres of Land, 469 U.S. 24, 29 (1984). “The Court has repeatedly held that just compensation normally is to be measured by ‘the market value of the property at the time of the taking contemporaneously paid in money.’ ” U.S. v. 50 Acres of Land, 469 U.S. 24, 29 (1984). TM

Application to the State Does the Takings Clause apply to the States? Does the Takings Clause apply to the States? Prior to 1897, the answer was no Prior to 1897, the answer was no In Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897), the United States Supreme Court incorporated the takings clause of the 5th Amendment into the Due Process Clause of the 14th Amendment In Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897), the United States Supreme Court incorporated the takings clause of the 5th Amendment into the Due Process Clause of the 14th Amendment TM

Eminent Domain “The inherent power of a governmental entity to take privately owned property, especially land, and convert it to public use, subject to reasonable compensation for the taking.” “The inherent power of a governmental entity to take privately owned property, especially land, and convert it to public use, subject to reasonable compensation for the taking.” - Black’s Law Dictionary (9th ed. 2009) TM

The Kelo Case NOW THE CASE: Read and highlight or circle the important facts. TM

Judicial Ladder The New London Development Corporation (NLDC), a private nonprofit entity, was created to assist the City of New London in planning economic development The New London Development Corporation (NLDC), a private nonprofit entity, was created to assist the City of New London in planning economic development The city council of the City of New London authorized the NLDC to acquire property by exercising eminent domain in the City’s name The city council of the City of New London authorized the NLDC to acquire property by exercising eminent domain in the City’s name The property at issue was to be taken to accomodate a “global research facility” for Phizer, an international pharmaceutical company The property at issue was to be taken to accomodate a “global research facility” for Phizer, an international pharmaceutical company TM

Judicial Ladder Kelo, the plaintiff, along with other property owners, sought an injunction in a Connecticut trial court to prevent the NLDC from taking their homes under the City’s eminent domain power Kelo, the plaintiff, along with other property owners, sought an injunction in a Connecticut trial court to prevent the NLDC from taking their homes under the City’s eminent domain power After a 7-day trial, a single trial court judge denied Kelo’s request for an injunction with regard to properties intended for office space, but granted an injunction with regard to properties intended for car and boat parking. After a 7-day trial, a single trial court judge denied Kelo’s request for an injunction with regard to properties intended for office space, but granted an injunction with regard to properties intended for car and boat parking. TM

Judicial Ladder On a direct appeal to the Supreme Court of Connecticut, bypassing Connecticut’s intermediary appellate court, both parties appealed portions of the trial court’s ruling On a direct appeal to the Supreme Court of Connecticut, bypassing Connecticut’s intermediary appellate court, both parties appealed portions of the trial court’s ruling In a 4-3 decision, the Supreme Court of Connecticut held that all of the property in question could be taken under the City’s eminent domain power, reversing, in part, the decision of the trial court In a 4-3 decision, the Supreme Court of Connecticut held that all of the property in question could be taken under the City’s eminent domain power, reversing, in part, the decision of the trial court TM

Judicial Ladder Kelo then appealed the decision directly to the Supreme Court of the United States… Kelo then appealed the decision directly to the Supreme Court of the United States…

Now you are Justices on the U.S. Supreme Court. Here is the question before the Court… TM

Legal Question Can private property be taken in furtherance of economic development benefiting a private corporation? TM

Is the property in question “Private Property”? Is the property in question “Private Property”? Is the City looking to “take” the private property? Is the City looking to “take” the private property? Will the property be taken for “public use”? Will the property be taken for “public use”? Is the private property owner being provided “just compensation”? Is the private property owner being provided “just compensation”? Other Key Questions TM

The Kelo Case Individually answer the questions – Yes or No – based on the facts of the case, the constitution, and case precedent. -Give 3 reasons in writing. TM

Form groups of 5 Form groups of 5 Choose a Chief Justice Choose a Chief Justice Chief Justice Maintains Order Chief Justice Maintains Order Poll the Justices. How did each one of you answer the questions and why? Poll the Justices. How did each one of you answer the questions and why? Try to reach to a unanimous decision. Does the taking in question violate the Takings Clause of the Fifth Amendment? Try to reach to a unanimous decision. Does the taking in question violate the Takings Clause of the Fifth Amendment? You have 10 minutes to discuss then take a final poll. You have 10 minutes to discuss then take a final poll. The Kelo Case TM

The Kelo Case After each Court decides: Bring the Chief Justices to the front of the room to report on the decision of each group. Bring the Chief Justices to the front of the room to report on the decision of each group. Tally results and announce. Tally results and announce. TM

The Kelo Case What did the real U.S. Supreme Court decide and why? TM

Kelo v. City of New London, 545 U.S. 469 (2005) In a 5-4 decision, a slim majority of the Supreme Court of the United States held that private, ruling in favor of the City of New London In a 5-4 decision, a slim majority of the Supreme Court of the United States held that private property can be taken in furtherance of economic development benefiting a private corporation, ruling in favor of the City of New London TM

Aftermath After the decision, the City of New London demanded residents who challenged their condemnation proceedings to pay hundreds of thousands of dollars in rent dating back to the year 2000 After the decision, the City of New London demanded residents who challenged their condemnation proceedings to pay hundreds of thousands of dollars in rent dating back to the year 2000 The City eventually reached an agreement with Kelo, agreeing to pay her $442,000 for her property and to relocate her pink house less than two miles away The City eventually reached an agreement with Kelo, agreeing to pay her $442,000 for her property and to relocate her pink house less than two miles away

Aftermath In September 2009, Pfizer merged with another pharmaceutical company, Wyeth, and abandoned the New London project in late 2010 In September 2009, Pfizer merged with another pharmaceutical company, Wyeth, and abandoned the New London project in late 2010 As of April 2011, the land is still undeveloped and its only residents are feral cats As of April 2011, the land is still undeveloped and its only residents are feral cats